Sena v. American Medical Response of Connecticut, Inc.

          Argued October 18, 2018

         Procedural History

         Action to recover damages for, inter alia, the allegedly wrongful death of the named plaintiff's decedent as a result of the alleged negligence of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Kamp, J., denied the motion for summary judgment filed by the defendant city of Bridgeport, and the defendant city of Bridgeport appealed. Reversed; judgment directed.

          J. Christopher Rooney, with whom were Alan Bowie and, on the brief, Anne Peterson, for the appellant (defendant city of Bridgeport).

          Alan Scott Pickel, with whom, on the brief, was Anthony L. Cenatiempo, for the appellees (plaintiffs).

          Robinson, C. J., and Palmer, D'Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.

          OPINION

          ROBINSON, C. J.

         This appeal requires us to consider the nature and scope of the immunity provided to the state and its political subdivisions by General Statutes § 28-13 (a)^[1] for actions taken in connection with a civil preparedness emergency declared by the governor pursuant to General Statutes § 28-9, ^[2] which, in the present case, related to a blizzard that occurred in February, 2013. The defendant city of Bridgeport (city)^[3] appeals^[4]from the trial court's denial of its motion for summary judgment in the present case, which was commenced by the plaintiff, Marinelis Sena, both individually and as administratrix of the estate of Tyrone O. Tillman.^[5]The operative complaint alleges, inter alia, that the city was negligent in (1) not following its usual practice of sending a fire truck with an emergency medical technician in addition to an ambulance to render medical care to Tillman when he experienced severe breathing difficulty on February 11, 2013, and (2) preventing the ambulance from arriving promptly by allowing snow to remain on certain public roadways. On appeal, the city claims, inter alia, that it was immune for its actions pursuant to§ 28-13, and that the trial court improperly determined that a genuine issue of material fact existed as to whether the civil preparedness emergency remained in effect on the date of Tillman's death. We conclude that (1) an appealable final judgment exists because the city's claims of immunity pursuant to § 28-13 implicate an extension of the state's sovereign immunity to the city, and (2) the trial court should have granted the city's motion for summary judgment because there was no genuine issue of material fact with respect to the applicability of § 28-13. Accordingly, we reverse the judgment of the trial court.

         The record reveals the following relevant facts^[6] and procedural history. On February 8 and 9, 2013, a blizzard, verified by the National Weather Service, occurred in nearly all of southern Connecticut. In anticipation of the blizzard, on February 7, 2013, at 1 p.m., representatives from the city's various departments and the local emergency preparedness board convened a meeting of the Bridgeport Emergency Planning Group, which was held at the city's emergency operations center (EOC). At that meeting, the members from the city's departments reviewed the city's emergency preparedness plan, designated representatives who would attend civil emergency planning sessions, and began to identify essential personnel who would be assigned during the expected emergency.

         On February 8, 2013, beginning at 7 a.m., the city began to implement its emergency preparedness plan. Full operations at the EOC were initiated that morning, and numerous city officials conducted a conference call with the statewide emergency operations center in order to ensure that the city's storm response was coordinated with the state's efforts. At 11 a.m., Mayor Bill Finch held a press conference and announced his intention to declare a civil preparedness emergency for the city, which included the institution of a citywide ban on driving so that plows could keep the roads clear. At 11:45 a.m., Governor Dannel Malloy held a press conference and declared a civil preparedness emergency pursuant to § 28-9.^[7] Shortly thereafter, the EOC activated its response atlevel4 and assumed centralized control over the city's response to the blizzard.^[8]

         By 5 p.m. on February 8, 2013, Governor Malloy had issued a statewide travel ban of all vehicles on any state road. By 8 p.m., snowfall was so severe that the EOC determined that it was unsafe for all vehicles other than plows to be on the city's roads. Whiteout conditions later that night required the recall of all plows. The EOC then restricted the response of municipal fire and police departments. Decisions regarding whether those departments would respond to reported emergencies were made by their representatives at the EOC, rather than by emergency communications employees. William Schietinger, the representative at the EOC from the city's ambulance contractor, American Medical Response of Connecticut, Inc. (AMR), similarly suspended ambulance service temporarily because of whiteout conditions. As visibility improved, the EOC decided that AMR could resume providing ambulance service, and, at 3 a.m. on February 9, 2013, plows returned to the streets.

         Beginning midday on February 9, 2013, the EOC shifted its attention from storm response to snow removal. The snow removal process was unusually difficult because snow accumulation reached a level higher than the typical dump truck with plow attached could move, and many cars had not been removed from public streets, despite the parking bans in effect. This resulted in vehicles having to be dug out and towed before streets could be plowed. Because of the substantial snow accumulation, the EOC requested that the state send national guard personnel and equipment to assist with snow removal and emergency responses. That additional snow removal equipment did not begin to arrive until February 10, 2013. Given the paralyzing snow accumulation, most of the city's residents were confined to their homes.

         The limited ability of the fire and police departments to respond to calls for assistance continued in the wake of the storm because most police and fire stations had not yet dug out. On February 10, 2013, at 2 a.m., Brian Rooney, the city's fire chief, and Dominic Carfi, a deputy fire chief who had been the fire department's representative at the EOC during the storm, determined that, in the case of medical emergencies, the only response would be through AMR because it was not physically possible for the city's fire trucks to leave the stations. Carfi conveyed that decision to the city's 911 emergency communications employees via their supervisor. Once fire headquarters was cleared of snow by approximately 10 a.m. that day, the fire department was able to use a limited number of four wheel drive sport utility vehicles that could be driven on plowed streets to respond to emergencies. In consultation with AMR's representative in the EOC, a deputy fire chief who had relieved Carfi would authorize the dispatch of one of these sport utility vehicles to emergency medical calls depending on road conditions, the location of the call, and the severity of the medical condition.

         On Monday, February 11, 2013, twelve front end loaders arrived and provided assistance in the clearing of the city's primary roads. However, city offices remained closed, no regular city employees reported for work, and schools would remain closed for the remainder of the week. As of 8 p.m. that day, a citywide driving ban remained in effect, and only 100 roads were open to emergency vehicles. Most of those were primary roads. Several hundred secondary roads were still closed or impassible, and tow trucks were still in the process of removing abandoned vehicles.

         At approximately 7:18 p.m. on February 11, 2013, Tillman called 911 complaining of severe breathing difficulty. At 7:27 p.m., AMR dispatched an ambulance to assist Tillman. The fire department did not respond. According to an affidavit submitted by Scott Appleby, the city's Director of Emergency Management and Homeland Security, Stevens Street, on which Tillman lived, had not yet been plowed at that time. Brian Walts and William T. Ostroff, emergency medical technicians employed by AMR, reached Tillman at 7:36 p.m. and rendered emergency care until 8:04 p.m. Tillman was subsequently transported to a local hospital, where he was pronounced dead upon arrival.

         The efforts to clear at least one lane on each of the city's roads continued until February 12, 2013. It took an additional week for the city's roads to be cleared to the point where traffic could pass normally. The EOC maintained command over storm response and snow removal through February 14, 2013, after which operational control over the various city departments, including the fire department, was returned to the normal operating procedure. The EOC remained staffed and active through February 17, 2013, at which point the operational period ended, the response was terminated, and the EOC was vacated by all personnel except Appleby.

         The plaintiff subsequently brought the present action against the city, AMR, Ostroff, and Walts. In counts twenty and twenty-one of the operative complaint, the plaintiff claims the city negligently failed to follow the local emergency service plan and permitted a highway defect to exist pursuant to General Statutes § 13a-149. On September 27, 2016, the city moved for summary judgment on immunity grounds. On November 16, 2016, the plaintiff filed an objection to that motion together with an accompanying memorandum of law.

         On March 8, 2017, the trial court issued a memorandum of decision denying the city's motion for summary judgment. The trial court first rejected the city's argument that the present action is barred by common-law governmental immunity. The trial court next addressed the city's argument that it is absolutely immune from liability pursuant to § 28-13. The trial court concluded that, although the city had met its initial burden of producing evidence sufficient to support a judgment in its favor on the issue of § 28-13 immunity, the plaintiff had submitted evidence contradicting the city's evidence concerning whether the city was still experiencing a civil preparedness emergency at the time of Till-man's death. The trial court also observed that the relevant statutes do not prescribe how to determine when an emergency has ended for purposes of § 28-13 immunity and suggested that a ‘‘workable ‘end date' is needed.'' Accordingly, the trial court concluded that, on the basis of the evidence before it, the city could not invoke the protections of § 28-13 immunity because a genuine issue of material fact existed as to whether the city was still actively experiencing a civil preparedness emergency at the time of Tillman's death. This appeal followed. See footnote 4 of this opinion.

         On appeal, the city argues that the trial court incorrectly concluded that the end date of a civil preparedness emergency has statutory significance under § 28-13, and incorrectly concluded that there was a genuine issue of material fact concerning the issue of § 28-13 immunity. The plaintiff disagrees and also argues that the trial court's denial of the city's motion for summary judgment does not constitute an appealable final judgment.

         I

         As a threshold issue, we must determine whether the trial court's denial of the city's motion for summary judgment is a final judgment over which we have subject matter jurisdiction.^[9] Relying on Shay v. Rossi, 253 Conn. 134, 749 A.2d 1147 (2000), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003), the city argues that there is an appealable final judgment because its motion for summary judgment was grounded on a colorable claim that § 28-13 grants the city and its police and fire departments sovereign immunity for actions taken in response to declared emergencies. In response, the plaintiff relies on Vejseli v. Pasha, 282 Conn. 561');">282 Conn. 561, 923 A.2d 688 (2007), and contends that we lack jurisdiction over the city's appeal because the city's motion for summary judgment under § 28-13 was founded on governmental, rather than sovereign, immunity. Additionally, the plaintiff argues that an issue of material fact still exists regarding whether the city was undergoing a state of emergency at the time of Tillman's death and, thus, whether the immunity afforded by the statute applies. We agree with the city and conclude that the trial court's denial of its motion for summary judgment was an appealable final judgment because § 28-13 extends the state's sovereign immunity to political subdivisions, such as municipalities.

         ‘‘The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a ...